Taking litigation from justice to social reform

Justice Ramaswamy’s judgment is bound to affect the entire functioning of the apex court in public interest litigation matters since the Supreme Court by and large functions in benches of two judges, that being the minimum number for a bench prescribed by its own rules.

Justice Ramaswamy has declared that the normal rule of reference to a third judge when two judges disagree does not apply in the matter of public interest litigation. This is so because public interest litigation is qualitatively different from the normal litigation in the courts.

Public Interest litigation, as held by several judgments of the apex court, is cooperative litigation to enable the government, the legislature and the judiciary to act for the enforcement of the fundamental rights of citizens.

It is not adversarial.

But normal litigation is adversarial and combative. Hence the provision in Article 145(5) of the Constitution cannot apply to public interest litigation. This provision lays down that the Supreme Court shall deliver a judgment only with the concurrence of the majority of the judges present at the hearing of a case. Further a judge who does not agree with the majority can deliver a dissenting opinion.

Basing himself on this reasoning, the judge has created a whole administrative structure for the Union and State Governments to eradicate prostitution itself and has given binding directions despite his brother judge, Justice D P Wadhwa’s complete disagreement. Justice Wadhwa has pointed out that the original writ petition based on an article in an English magazine sought separate educational and other facilities for children of prostitutes. In 1989, the court directed amendment of the petition to confine it to setting up of juvenile homes under the Juvenile Justice Act.

The court rejected the plea for segregated facilities and constituted a committee to examine the following objects: viability of having separate schools and hostels, existing laws relating to the apex group and the possibility of evolving a national scheme for these children. So the committee did not deal with the issue of eradication of prostitution itself, the issue was not raised in the petition, the parties were not informed about this issue and the Union and State Governments were not heard on it.So while concurring with the directions of Justice Ramaswamy on the setting up of juvenile justice homes, Justice Wadhwa dissented from the rest of the directions. He also dissented from what had been said about Article 142 and 145(5) of the Constitution.

Justice Ramaswamy gave two reasons for valiantly proceeding singly. One, the commission’s report had indicated the very source of the problem, namely body traffic of women in violation of all fundamental rights and international conventions. The Central and State Governments had been given copies of the report and none had objected as none could. In the light of these undisputed facts, the court could mould effective relief for the children of prostitutes by dealing with the problem at its root.

Second, this petition itself had been pending for about ten years and every day’s delay would defeat the fundamental rights of the utterly helpless women held in terror of poverty, police and gangs. A reference to a three-judge bench would only result in delay defeating justice. But both the judges missed Article 145(3) of the Constitution which requires a minimum bench of five to decide on any question about the interpretation of the Constitution. Justice Ramaswamy fundamentally raised the issue of interpretation of Article 145(5) and 142.